Alito: Oh No, Runaway Liberty!

Justice Samuel Alito, in a conversation with Bill Kristol, complains that the Supreme Court’s ruling on same-sex marriage frightens him because it could lead to a sort of runaway liberty that would be horrible because…well, he doesn’t really say why. It just is.

In a taped conversation with Weekly Standard editor Bill Kristol, Alito decried the way he believed the marriage decision, Obergefell v. Hodges, defined the definition of liberty guaranteed by the Constitution’s 14th Amendment to be “the freedom to define your understanding of the meaning of life.”

“There’s no limit,” Alito said, arguing that the Rehnquist court had tried limit such legal definitions of liberty to be “deeply rooted in the traditions of the country.”

“But the Obergefell decision threw that out,” Alito said, as the Daily Beast noted. “It did not claim that there was a strong tradition of protecting the right to same-sex marriage. This would have been impossible to find.”

Without these legal limits on the definition of liberty, Alito speculated that future justices could grant constitutional rights on the basis of their ideological whims, and practically, the nomination of judges will become more like a political election.

“So we are at sea, I think. I don’t know what the limits of substantive liberty protection under the 14th Amendment are at this point,” he said.

Like all that rhetoric about “judicial activism” and “unelected judges in black robes,” this is a very familiar complaint. We hear it every time the Supreme Court expands on the sphere of protected rights that are not specifically listed in the Constitution — but only by those who oppose that expansion of rights. When they agree with it, that rhetoric suddenly disappears.

It’s true that Justice Kennedy’s rulings in four Supreme Court cases involving gay rights has been moving toward a broader and more expansive definition of personal autonomy and liberty. He has rested those rulings not merely on a right to privacy but on a broader right to personal liberty, particularly when it comes to highly personal decisions involving personal intimacy. But I regard that as a very good thing, not a bad thing.

Alito objects to the idea of protecting “the freedom to define your understanding of the meaning of life,” but he offers no reason for that objection. Each individual should be free to define the meaning in their lives, to take those actions that they believe are right so long as those actions do not violate the rights of others or harm them against their will. This is precisely what Thomas Jefferson meant in a letter to Isaac Tiffany in 1819 when he wrote:

Of Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.

If my actions do not deprive others of their equal rights or harm them against their will, those actions should be of no concern to the government. It is only authoritarians like Alito who think that one person’s desire to control their own lives and another’s desire to control the lives of others are equally legitimate. They are not.

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  • colnago80

    Thanks Ralph Nader for Samuel Alito on the Supreme Court. Or perhaps that morons in Florida and New Hampshire who voted for him.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Everybody knows that your rights end where my umbrage begins.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    colnago80, you Liberals make me sick, giving Nader all the credit for Dubya’s Great Victory, while our voter roll purges get (and got) ignored.

  • caseloweraz

    Runaway Liberty? The only runaway Liberty I’ve heard of is Liberty Valance. He ran amuck real good — until somebody shot him. But if that sort of unbridled behavior is what Alito meant to describe, there’s a better word than “liberty” for it.

    In a taped conversation with Weekly Standard editor Bill Kristol, Alito decried the way he believed the marriage decision, Obergefell v. Hodges, defined the definition of liberty guaranteed by the Constitution’s 14th Amendment to be “the freedom to define your understanding of the meaning of life.”

    This is wrong on its face, as it asymptotically approaches the definition of “thoughtcrime.” Why is it that so many learned people have such trouble using words with accuracy and coherence? If Alito had meant to decry the loosening of proper limits to behavior, he should have had no problem saying exactly that.

    “There’s no limit,” Alito said, arguing that the Rehnquist court had tried [to] limit such legal definitions of liberty to be “deeply rooted in the traditions of the country.”

    And how is this relevant? Was there a tradition of interracial marriage in America before Loving v. Virginia? The same question could be asked about any number of subjects, including the right of women to vote.

  • caseloweraz

    This is precisely what Thomas Jefferson meant in a letter to Isaac Tiffany in 1819 when he wrote:

    Of Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.

    I’m sure Jefferson did not write “it’s extent”. I see way too much of the possessive “its” with the apostrophe in it — just as I too often see people apparently unaware of how to spell the past-tense form of the verb “lead.”

  • John Pieret

    I have to admit that I preferred the Equal Protection argument over the Substantive Due Process argument just because of Alito’s and Roberts’ cavils in this regard. It is kind of hard to find an unenumerated right to SSM in the Constitution when, until very recently, same sex relations were illegal in all US jurisdictions. It’s not that I don’t think a cogent argument can be made for such an unenumerated right, it’s just that the Equal Protection argument is so much more clear-cut.

    At the very least I would have liked Kennedy to make more of the Equal Protection argument or, maybe better, one of the other Justices writing a concurring opinion not only setting it out at length but also slapping around the states’ arguments the way Judge Posner did in the 7th Circuit and giving it back to the dissenters as well.

  • busterggi

    Alito is really a Mooslim – he hates our freedom!

  • Randomfactor

    So…which way did scAlito vote on extending religious rights to corporations in Hobby Lobby? Free speech rights to corporations in Citizens United?

    Surely he’s not a hypocrite…

  • moarscienceplz

    [Alito] arguing that the Rehnquist court had tried [to] limit such legal definitions of liberty to be “deeply rooted in the traditions of the country.”

    Soooo, the only way we can get a new right is if we first spend many years trying to protect that right while it is against the law? So I guess gay couples should have first found a bunch of government clerk who would be willing to issue illegal marriage licenses, risking losing their jobs and possibly go to jail, and THEN the SCOTUS could decide if it should be legal or not? In other words, the only good way to protect the Law is to encourage people to break the Law? Huh?

  • cptdoom

    Alito decried the way he believed the marriage decision, Obergefell v. Hodges, defined the definition of liberty guaranteed by the Constitution’s 14th Amendment to be “the freedom to define your understanding of the meaning of life.

    I thought that freedom was, you know, protected in the First Amendment. Does Alito hate that too?

  • Lady Mondegreen

    @caseloweraz, the man who shot Liberty Valance, he was the bravest of them all.

  • moarscienceplz

    the man who shot Liberty Valance

    Great movie, by the way.

  • Hercules Grytpype-Thynne

    @caseloweraz:

    I’m sure Jefferson did not write “it’s extent”

    You may be sure, but you’re probably wrong. I haven’t bothered to look up this particular quotation, but it wouldn’t be the only time that Jefferson used that spelling. Wikipedia notes:

    The possessive of it was originally it’s, and many people continue to write it this way, though the apostrophe was dropped in the early 1800s and authorities are now unanimous that it’s can be only a contraction of it is or it has. For example, U.S. President Thomas Jefferson used it’s as a possessive in his instructions dated 20 June 1803 to Lewis for his preparations for his great expedition.

  • DonDueed

    Great movie, by the way.

    Yes it is, but the song isn’t used in the film.

  • raven

    Alito objects to the idea of protecting “the freedom to define your understanding of the meaning of life,” but he offers no reason for that objection.

    Cthulhu, Alito is dumb.

    As Ed notes, this is already a protected right. And one that everyone uses. Even if you decide to become an uber Catholic, that is a choice you make.

    limit such legal definitions of liberty to be “deeply rooted in the traditions of the country

    More nonsense. Which traditions of the USA? We are a mult ethnic state settled over centuries. There is no such thing as USA traditions.

    And cultures change all the time. They evolve. We’ve dropped the tradtion of finding American Indians, shooting them, and stealing their land and stuff. Dropped slavery. Women got the right to vote a century ago. And the worst. The Catholic church lost its traditional power centuries ago after a vicious war that the Protestants won.

    Traditions aren’t automatically good.

    This is a Supreme Court judge? My cat could do better.

  • Georgia Sam

    For all their talk about liberty & freedom, right-wingers really only believe in those things for themselves & people whose behavior meets their approval. For everybody else, they believe in restrictions & criminalization.

  • freehand

    Alito! [snarl]

    .

    If only all those people hadn’t voted for Gore, Alito wouldn’t have been appointed. And we’d be doing something about global warming, too.

  • doublereed

    Isn’t “defining your own meaning in life” quite literally what is meant by saying that people have the right of the pursuit of happiness?

  • raven

    Isn’t “defining your own meaning in life” quite literally what is meant by saying that people have the right of the pursuit of happiness?

    It’s also freedom of religion*. Freedom of thought. Freedom to live your life the way you want to.

    I’m still astonished at how stupid this guy is.

    * Religion gives you a prepackaged meaning to life which is what Alito as a True Catholic supposedly believes. In a lot of xianiy, our earthly existence is just a brief proving ground before we head off to eternity, heaven or hell. It’s not important except to avoid one and gain the other.

    In practice, the vast majority of xians don’t live their life this way. They do what they want for the same variety of reasons the rest of us do.